Confirmation Bias: Staged Storytelling in Supreme Court Confirmation Hearings.

Abstract

Many scholars have looked at the dramatic elements of trials. But no scholar has looked at the dramatic elements of Supreme Court Confirmation hearings, even though many hearings in recent years--most notably the hearings of Robert Bork, Clarence Thomas, and Sonia Sotomayor--quickly turned into highly theatrical affairs, by which I mean affairs that involved deliberate staging, the use of props and costumes, and a series of ordered (and rehearsed) exchanges performed in front of an audience. Perhaps this neglect is a result of the prevailing view of the hearings as, in the words of one the current justices, "vapid, hollow charade(s)" that "serve little educative function, except perhaps lessons of cynicism that citizens often glean from government."

My own view is at once less pessimistic and more pedagogical. I argue that Supreme Court confirmation hearings are a valuable form of cultural expression, one that should be taught and studied as plays are often taught and studied: as a record of, to borrow Martin Esslin's definition of good theater, "a nation think[ing] in public in front of itself."

The specialness of this record comes from its form. Unlike a statute or judicial opinion, unlike a law review article or book, unlike anything written, these hearings are performed by real people in real time in front of an audience. This makes them particularly well-suited, as plays are, to capture deep cultural conflicts, to document, in other words, the dialogue that divide communities. Using a series of three case studies, this dissertation shows how the Bork hearing, the Thomas hearing, and the Sotomayor hearing each carry out an important public function and in the process teach us something about how American justice is, at its highest level, performed.